Family Law Tut 2

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School

University of Technology Sydney *

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78139

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Sociology

Date

Jan 9, 2024

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docx

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Tutorial Questions - Understanding of fam in the aus constitution is based on the married couple with children (nuculer family) - Reflecting reality of some families but not all (single parent families, indgenious,migrant all have different structures and needs - Commonwealth (s51) can make laws in respect to marriage and divorce/matriomonial causes – s51 (xxi) marriage (xxii) divorce and custodianship of infants - State laws: adoption, child welfare laws, succession laws - 1. Compare the views of Brown, Gilding and Hamilton about Australian families in the readings. With respect to each, explain how law should regulate the familial relationships described by each of them? - Brown and gliding give different accounts of family life in aus - Brown (nuclear family is the dominant form) and Gliding give very different accounts of family life in Australia - Brown and Hamilton have different explanations about the effects of ‘settlement’ on indigenous women where brown talks about absence of women in the bush while Hamilton talks about how sexual relations between white men and indigenous women are damaging for indigenous people - Gliding: although practices vary between indigenous groups it seems true that the conceptions of kinship and good child-raising practices are significantly different from the nuclear kinship relations constructure in different ways from western - I found Gliding’s view interesting in regard to Indigenous Australians and kinship systems, with the term ‘mother’ for example is often used to cover a wider group of people than the biological mother. Typically kinship systems amongst indigenous groups are more classified, which means that a larger proportion of the social group, are accounted for in terms of kinship (different from western kinship systems which consists of a much narrower range of relations. - Gilding family structure economic reasons (husband working) family built on economic circumstances – structure of people depending on each other, violence between women and children due to economic dependency 2. The Australian Constitution gives power to the Commonwealth to make laws with respect to marriage, creating marriage as the benchmark against which all other relationships are measured. How does this impact on different relationship structures such as same-sex relationships, Aboriginal traditional polygamous marriages and de facto relationships? Is different treatment of different relationships acceptable?

- The Australian Constitution and Commonwealth legislation uses the ideas about family as a nuclear family - This reflects the reality of some families, but not all, e.g. Single parent families, Indigenous families/Migrant families/ Refugee families may have different - A further difficulty for parties in the context of matters relating to children arises when a child’s family does not conform to the model envisaged by the Family Law Act. The current definition of ‘parent’ for the purposes of Pt VII is limited to the child’s biological or adoptive parents, or is reliant on the deeming provisions relating to children born as a result of artificial conception procedures or under surrogacy arrangements and the Family Law Act assumes that a child has two of these. The Family Law Act does not contemplate the increasing number of children who live in step-families, blended families, sole-parent families, same-sex families, in kinship care arrangements or within the increasing number of new and emerging migrant communities, many of whom take a collectivist approach to child rearing. - De facto, registerd or civil union relationships do not equate to marriage, - Although the vast majority of state and federal legislation apply equally to couples regardless of marital status and sexual orientation, there remain a few areas in which non-married couples are disadvantaged due to their lack of marital status, such as providing proof of relationship - - Polygamous marriages (aboriginal traditional marriages): only to be recognised so far they fit Aust law and traditional view of marriage - Same-sex marriages: now recognised in marriage act - De-facto relationship- illustrates the discursive power of marriage as the benchmark for all other relationships- marriage understood as formalised union based on the traditional nuclear family that fosters dependency 3. Do you think family disputes require specialised courts or other institutions? Why or Why not? What is your understanding of 'specialisation' in considering this question? - Philosophy – mediation within court facilities, registers, avoid undue formality, structure – architecture, no robes for judges, no wigs, non-intimidating, and expertise (special area requires judges with special knowledge of family issues - Soft law approach - What is a family mean different things to people involved – specialisation is needed - Does not usually work 4. Compare the merger of the Federal Circuit Court and the Family Court in February 2021 and the recommendations of

the ALRC report 2019 to abolish the federal family courts and establish state and territory family courts. What assumptions about the needs of families underpin these very different proposals? - Jurisdictional gap - Lack of co-ordination between family courts and state territory courts in protecting children from violence and abuse - Alrc focus is on addressing issues arising in complex matters - Family court not equipped to deal - State courts are better equipped

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